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Publius’ Natural Law

Calligraphy handwriting on old vintage paper

Between the breathless whispers that Judge Neil Gorsuch intends to impose either medieval Catholicism or, worse, Oxford sensibilities from the bench through the mechanism of natural law and the fear that he might otherwise glide into the legal positivism of which Justice Scalia was unreasonably accused lies another possibility: The Constitution can neither be interpreted through natural law nor reduced to positive law. It is more profitably understood as fundamental law.

From this perspective, the question is not whether the polity is attached to transcendent moral principles but rather what is the likeliest means of attaining them. The answer is deliberative self-government bound and guided by a venerated Constitution.

The Federalist repeatedly differentiates between fundamental and ordinary law. Federalist 53 emphasizes “the important distinction, so well understood in America, between a constitution established by the people, and unalterable by the government; and a law established by the government, and alterable by the government.” Federalist 78 says judges must regard the Constitution as “a fundamental law” and therefore prefer it to statutory law when the two conflict: “They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

How does law become fundamental? It is not through the simple mechanism of the courts. It is true, as Federalist 78 indicates, that judges should interpret the Constitution as fundamental when a question is properly presented to them—that is, when a statute varies with the Constitution and naturally comes before the judiciary in the course of its duties. But not all questions are properly judicial. James Wilson thus said that the judicial department had the power to declare the Constitution to be superior to law “in particular instances, and for particular purposes.” Judges are not the primary constitutional gatekeepers in a republic. A constitutionally disposed people is.

Multiple indications in The Federalist suggest, for example, that Publius relies more on passive political mechanisms than on an active role for judges for the protection of rights. Federalist 10 proclaims its “republican remedy for the diseases most incident to republican government” without having once mentioned the judiciary or, for that matter, any constitutional mechanism except those inherently derived from the empirical conditions of an extended republic. Federalist 51 rejects controlling the majority through a will independent of it. The essay contains a reference, to be sure, to a royal veto (an “absolute negative on the legislature”),  but the description is very much like how we now think of the Court. Such a check, Publius explains, would be a “precarious security” because there is no inherent reason to believe it would protect rights as opposed to betraying them.

Publius relies on similarly political mechanisms for establishing the Constitution as fundamental law. Simply put, it will be protected as fundamental only if the people revere it as fundamental. Consequently, Federalist 25 warns against imposing constitutional fetters that are likely to be violated since a violation of

the fundamental laws, though dictated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches, where the same plea of necessity does not exist at all, or is less urgent and palpable.

The most celebrated case for constitutional reverence is Federalist 49’s warning that frequent appeals to the people to resolve constitutional disputes  would, by constantly implying constitutional imperfections,  “deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Time’s role is essential. Call it the magic of compound veneration: Because we respect older opinions more intensely, the longer the Constitution is revered, the more it will be so.

Significantly for those who would impose a purely rationalist lens on the constitutional project, Publius speaks in the last-mentioned essay of the value of the regime’s having “the prejudices of the community on its side.” These prejudices help us to tether our notions of rights, and of what is right, to time and custom—a much more solid anchor than trying to base these notions on the kinds of abstract philosophical inquiry that, however valuable, are subject to change according to the whims of jurists. (See, for example, Justice Kennedy.)

This idea of the Constitution as fundamental law venerated by the people over time helps to fortify the hedgerows that limit and guide debate while meeting the substantial challenge Publius sets forth for “the friend of popular governments” at the outset of Federalist 10: to solve the problem of faction and thus to respect natural rights “without violating the principles to which he is attached”—that is, the principles of popular government.

Much is made, in this context, of the Declaration of Independence and Abraham Lincoln’s elevation (or rather, as the thesis goes, restoration) of that document to the center of the civic canon. Yet there are misapprehensions here.

Unquestionably the Declaration, which says governments are instituted to secure rights, assumes that rights preexist government. Some constitutional language makes the same assumption. (The Second Amendment, as Justice Scalia noted in District of Columbia v. Heller (2008), speaks of the people’s right to bear arms as something that exists, not something that is being granted.) The Ninth Amendment speaks likewise of retained rights, Judge Bork’s famous/infamous “inkblot” remark indicating not that it should be read out of the Constitution but rather that it is insufficiently precise for judicial imposition.

Yet the Declaration also assumes that the natural right par excellence is the self-government of “the people,” to whom it repeatedly refers in the corporate sense: “the Right of the People to alter or abolish” an abusive government; George III’s dissolving of legislatures to invade “the rights of the people,” and the like. The unalienable rights to “life, liberty and the pursuit of happiness” make little Lockean sense as the rights of isolated individuals, who do, in the terms of the Second Treatise, alienate their natural rights of acting as they please. Locke wrote:

The first power, viz. of doing whatsoever be thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature.

These laws, not incidentally, are to be made by the majority, since not to be obligated to the majority would be the same as living “under no other ties than he was before in the state of nature,” which would “signify nothing, and be no compact.”

The Declaration repeatedly signals a similar commitment. As Willmoore Kendall and George W. Carey note, the much-overlooked complaints against King George refer not to the absolute or isolated rights of individuals but rather to the right of a political community to consent to the laws that govern them.

So did Lincoln speak of the political community. His objection to Stephen Douglas’ doctrine of “popular sovereignty” was not an argument of natural right or law as expressed in the Declaration but rather that the Kansas-Nebraska Act of 1854 abrogated the Missouri Compromise of 1820, to which a national majority had consented and which ought to be restored by majority rule.

Thus the Peoria Address of 1854:

The Missouri Compromise ought to be restored. For the sake of the Union, it ought to be restored. We ought to elect a House of Representatives which will vote its restoration. If by any means, we omit to do this, what follows? Slavery may or may not be established in Nebraska. But whether it be or not, we shall have repudiated—discarded from the councils of the Nation—the SPIRIT of COMPROMISE; for who after this will ever trust in a national compromise? The spirit of mutual concession—that spirit which first gave us the constitution, and which has thrice saved the Union—we shall have strangled and cast from us forever. … [E]ven if we fail to technically restore the compromise [because the Senate refuses], it is still a great point to carry a popular vote  in favor of the restoration. (Emphasis added.)

In other words, the issue was not whether a majority was entitled to decide this matter but rather the level at which the majority should register its views. Consequently, Lincoln proceeded to declare that a Whig who opposed repeal of the Fugitive Slave Act of 1850 while favoring the restoration of the Missouri Compromise was taking a position that was “national and nothing less than national.”

That decidedly does not mean Lincoln did not oppose slavery as a violation of natural law or natural rights. He did, including at Peoria, where he railed against the Kansas-Nebraska Act’s assumption “that there CAN be MORAL RIGHT in the enslaving of one man by another.” The dispute pertained to the principle according to which that wrong should constitutionally, and thus enduringly, be rectified.

In his First Inaugural, he made this same point, as he outlined the questions the nation faced on slavery:

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative; for continuing the Government is acquiescence on one side or the other. . . .  A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

When do the restraints of which Lincoln spoke lie within the jurisdiction of the Court? Not always, and not even primarily. A question does not become judicial simply by dint of being constitutional. (Madison, at the Philadelphia Convention, would have explicitly limited that jurisdiction to cases “of a Judiciary Nature,” which his fellow delegates thought so self-evident as not to require specification.) Lincoln’s famed critique of Dred Scott would today be regarded as a lawless attack on judicial independence, which is the code we use for judicial supremacy.

Lincoln recognized what Publius did in Federalist 51: Relying on the Court for outcomes in accordance with either natural law or natural right is a “precarious security.” The only real security is a deliberate people “held in restraint by constitutional checks and limitations.”

This restraint comes from respect for the Constitution as fundamental law. Thus Judge Neil Gorsuch. In a 2005 essay for National Review, the judge, then a private lawyer, warned of excessive reliance on the courtroom to resolve contentious issues. Legislation, he wrote, is an arena of compromise, not stark winners and begrudging losers.

This neither betrays nor conceals his commitment to the natural law. Rather, it recognizes the best way to progress steadily toward fulfilling that commitment, which is to place it in the hands, over time, of the first 2,000 people in the Boston telephone directory rather than the first nine people in the federal judiciary. At discrete moments, these 2,000, whom William Buckley made so famous, can behave like mobs. (Of course, at discrete moments, these nine can behave mercurially.) But the idea of constitutional veneration is that over time, fundamental law hedges, guides, and seasons them.

The “friends of popular government” who espouse that idea may, of course, be wrong. If so, their company—from Locke to Lincoln—is distinguished.

Reader Discussion

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on March 28, 2017 at 09:26:39 am

The Ninth Amendment is somewhat vague, but to say that it is “insufficiently precise for judicial imposition” is to abdicate the duty that every judge takes to defend the Constitution. No doubt that some construction will be necessary to determine the exact rights that are protected, but this is something that judges had been doing long before the Constitution was written down. Remember in England the entire Constitution was unwritten, surely a little unwritten rights (derived from natural rights) which can only limit the powers of government are less than that.

I completely disagree with the part you wrote on Locke. As Locke makes clear just a few paragraphs latter: “(for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good.” We do give up some of the power that we had in a state of nature when we enter into a civil society through something like the Constitution. But that power extends no further than the common good such that no man is left worse off than before entering society. This is where the natural rights to life, liberty, and the pursuit of happiness exist even in a civil society. For the right of liberty is merely your right to do those acts which do not harm others and as such regulating them is not for the common good. Likewise the right to life, your mere existence, doesn’t harm other people and so killing people is not for the common good and cannot be rightly done in a just society. The pursuit of happiness is a little more vague, but even so it includes the right to acquire property and use it in ways that do not harm others. Nuisance, for instance, harms the property interest of others, but other uses of a person’s property should be protected by natural law. No majority can compromise these rights without injustice.

Now people also have the political rights to alter or abolish government if it is destructive of the ends (the purposes of government). These are second order rights as the primary purpose is to protect the natural rights of the people (life, liberty and the pursuit of happiness). Yes, Kind George did violate some of these second order rights that prevented the people from using self-government to protect their primary rights.

As to Lincon, let me quote another part of that speech that more directly addresses the question about the natural rights of people under the declaration of independence:

The doctrine of self government is right---absolutely and eternally right---but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government---that is despotism. If the negro is a man, why then my ancient faith teaches me that "all men are created equal;" and that there can be no moral right in connection with one man's making a slave of another.

Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying "The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable negroes!!"

Well I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other's consent. I say this is the leading principle---the sheet anchor of American republicanism. Our Declaration of Independence says:

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED."

It is not a majority at all which should make this decision, this a natural right of black people to decide their own lives. The majority should recognize this and uphold it, but it properly derives from the declaration of independence in that the government lacked the consent of the black individuals to their slavery.

As to Federalist 51, reread the text again: “The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security.” The judges are not a hereditary, nor are they a “self-appointed authority.” The power of the judges drives from the people who are the ultimate sovereigns. The people through the Constitution set up the judiciary and within the scope of its rightful powers they are as much representatives of the power of the people as are the elected branches. Judges are merely agents of the power of the people, and all their authority comes from the people. The judiciary is not a power “independent” of society, but comes from society. They are not supreme in their power, but neither are they impotent, they are co-equal with the other branches.

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Devin Watkins
on March 28, 2017 at 09:41:58 am

"The first power, viz. of doing whatsoever be thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society...which laws of the society in many things confine the liberty he had by the law of nature. " - Great commentators on Locke's notion, such as Hadley Arkes, readily point out his (Locke's) most obvious misconception, or the most obvious misconception most frequently derived by his readers of the above assertion, is that in nature, (before civilized society), there ever existed a right to do a wrong, (i.e. to commit a pre-meditated murder, because it might be "thought for the preservation of himself.").

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Paul Binotto
on March 28, 2017 at 09:44:39 am

Masterful!

It would seem that the inability (unwillingness, is perhaps more accurate) to compromise has the unfortunate effect of reducing our fundamental constituent law to nothing more than the common law, far more readily subject to the recurring *mercurial* distemper(s) of the Black Robes and the at times unrestrained passions of the citizenry.

Are we to have a Constitution or a Grand Small Claims Court? involved in the adjudication of that which ought to be resolved by the People or their elected Representatives. In an apparent effort to *IMPOSE* unanimity, unavailable / impossible in the political arena, we have sought this elusive condition (unanimity) in the Judicial Department. Oh, Hosanna, let us hear from the "Voices on High" and all will be well with the Republic - or so the various / alternating factions would have us believe.

Nope, I will take Burke over Blackstone, Publius over Kennedy, etc.
As some of the Founders believed, not all cases / controversies rise to Constitutional standing; send them back to "small claims court," and / or the People.

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gabe
on March 28, 2017 at 10:24:22 am

" The judiciary is not a power “independent” of society, but comes from society. They are not supreme in their power, but neither are they impotent, they are co-equal with the other branches."

Can we leave it as follows:? This was a most fervent desire of Mr. Madison; time, and circumstance, has however, frustrated Mr. Madison's desire. In part, because the Judiciary has taken on far too much; albeit, perhaps as a consequence of a Legislative that itself has taken on far too much.

No longer is our governance one of limited extent; rather, it seeks to radically expand our conception of the "Common Good", and, in so doing, redefine both the happiness AND the pursuit of happiness for its citizens. The Judicial has all too happily advanced this new conception of the common good / morals, etc.

Let us not forget the "citizenry" (such as they have become), certain factions of which, in search of that elusive *unanimity,* and unwilling to compromise, have engendered a new Judicial epistemology / foundation through which ALL politics (properly understood) will be reduced to peculiar and arcane determinations / ministrations of the Courts.
One is now compelled to ask: Who is independent of whom?

In a sense the problem with the Court is the same problem as that contained in Social Contract.
Both fail to recognize the "imposition' of obligations" as the true enemy of liberty. Locke, in his assumption that the Law (the Contract) justly imposes obligations - when in fact all these obligations were previously "worked out" amongst the people BEFORE any LAW was written. The Court fails to understand that its new edicts / mandates IMPOSE obligations upon the citizenry (at least one likes to hope that they FAIL to recognize, rather than intentionally IMPOSE) without their consent.

Obligations to be both valid and enduring OUGHT to be entered into willingly and with *notification* (in the legal sense). Both Locke and the Judiciary seem to dismiss this rather "quaint" notion of consent, albeit in different ways. Locke by assuming that the Law properly makes obligations and that prior to the Law, man could not / did not accept obligations; the Black Robes by simply arrogating to themselves the right to impose obligations.

While man as man did not / could not exist prior to society, man as man did not require the Law (or Judges) to voluntarily enter into obligations. Indeed, it was (is) the totality of those obligations UPON WHICH the Law was to be written - a simple codification of existing obligations - voluntary ones, I should add.

Question: Does such a state of voluntary obligations exist today?
Perhaps that would shed light on Weiners essay!

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gabe
on March 28, 2017 at 11:13:31 am

And here is an example of the imposition of an obligation:

From National Review Bench Memos:

2015—“Judicial-identity disorder” is a condition that afflicts judges who experience significant discontent with the role they were assigned when they took office. JID typically manifests itself in judicial decisions that are inconsistent with the judicial role and in behavior that reflects a severe and pervasive discomfort with neutrally applying the law. Unfortunately, no effective treatment for the condition is currently available. Federal district judge Jon S. Tigar, appointed by President Obama in 2013 to the Northern District of California, quickly joins the ranks of judges manifesting symptoms of JID, as he issues an order ruling that a California prisoner, Jeffrey Norsworthy, is likely to succeed on the merits of his claim that prison officials have violated his Eighth Amendment rights by not providing him sex-reassignment surgery. Tigar orders the state to “take all of the actions reasonably necessary to provide Norsworthy sex reassignment surgery as promptly as possible.”

Oh, did I mention, the taxpaying citizens will be obligated to pay for this.

Perhaps, this decision was based on "UN-natural Law."

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gabe
on March 28, 2017 at 11:22:42 am

Does this order also include use of the woman's prison?

Another example of the mentally corrosive properties of saltwater- sea air.

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Paul Binotto
on March 28, 2017 at 12:27:45 pm

Paul:

Good ones?

"Another example of the mentally corrosive properties of saltwater- sea air."

Yep, it would appear to turn their brains into *saltwater taffy* - when warmed quite "bendable."

"Does this order also include use of the woman’s prison? "

Funny you should ask. Apparently it does. Just recently one could read the laments of a transgender type, who, after having been transferred to a "womyns" prison expressed its remorse at having insisted on being incarcerated there. It appears that appearances were deceiving - then again, wasn't that this characters problem in the first place.

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gabe
on March 28, 2017 at 12:39:02 pm

Devin:

Here is another take on your comment / assertion:

" For the right of liberty is merely your right to do those acts which do not harm others and as such regulating them is not for the common good. "

At what point, must / ought a civil society restrict those personal options that in your estimation (probably more reasonable than others in our "rights addled" society) in the interest of maintaining some semblance of, yes, allegiance to generally accepted social norms / mores?

Here is a link to a nice essay that discusses the effects of this "willful" rights addled society:

https://vulgarmorality.wordpress.com/

And here are two selected quotes from it that touch upon a) the problem and b) the need for a mediating mechanism.

“But uniqueness cannot be transferred or alienated. We are, in our essence, unrepresentable. The metaphysical premises of the electorate collide with the requirements of democracy as actually practiced in large nation-states. This is not viable, even for the short term. We stand, with regard to democracy, on the edge of a precipice, lured forward by Gnostic illusions.”

AND

“It seems impossible that such a catastrophe will overtake the enlightened nations where we live, because we love life too much, and are such devout humanitarians. But WE HAVE EXHAUSTED OUR SPIRITUAL FORCE ON IDENTITY: we can really only love ourselves. “

Read the essay, it will put the quotes into context.

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gabe
on March 28, 2017 at 12:42:23 pm

Lincoln recognized what Publius did in Federalist 51: Relying on the Court for outcomes in accordance with either natural law or natural right is a “precarious security.” The only real security is a deliberate people “held in restraint by constitutional checks and limitations.”

[T]he best way to progress steadily toward fulfilling that commitment, which is to place it in the hands, over time, of the first 2,000 people in the Boston telephone directory rather than the first nine people in the federal judiciary….

The “friends of popular government” who espouse that idea may, of course, be wrong. If so, their company—from Locke to Lincoln—is distinguished.

I’ll add a couple others.

The deadliest enemies of nations are not their foreign foes; they always dwell within their borders. And from these internal enemies civilization is always in need of being saved. The nation blest above all nations is she in whom the civic genius of the people does the saving day by day, by acts without external picturesqueness; by speaking, writing, voting reasonably; by smiting corruption swiftly; by good temper between parties; by the people knowing true men when they see them, and preferring them as leaders to rabid partisans or empty quacks.

* * *

Democracy is still upon its trial. The civic genius of our people is its only bulwark….

William James, Oration upon the Unveiling of the Robert Gould Shaw Monument (May 31, 1897)

[T]his much I think I do know--that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

Learned Hand, The Contribution of an Independent Judiciary to Civilization (1942).

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nobody.really
on March 28, 2017 at 14:51:22 pm

Saltwater taffy or daffy?

I anticipated the answer, but had to ask it anyway - ha!

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Paul Binotto
on March 28, 2017 at 16:39:37 pm

Greg Wiener cites Locke on the principle of self-preservation, but he could have cited St. Germain, Aquinas or Cicero on this same point. Locke wasn't very important for lawyers among the Founders when it came to discussing natural law, the age-old "first ground" of the laws of England (per St. Germain, which Thomas Jefferson "thoroughly annotated"). As Secretary of State Jefferson wrote: "Those who write treatises of natural law, can only declare what their own moral sense and reason dictate in the several cases they state....Grotius, Puffendorf, Wolf, and Vattel are of this number." Jefferson doesn't bother to mention Locke, who wasn't even a lawyer.

But regarding Publius, the classic statement comes from Federalist #43 (Madison), referring to "the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." Publius (John Jay) also mentions safety and happiness in Federalist #2, echoing the phrase's appearance in the nation's founding documents in May and July 1776.

To reinforce the association of this Ciceronian (not Lockean) principle of safety and happiness with the Constitution, the 1st U.S. Congress, just before it adjourned in September 1789, requested that President Washington proclaim a day of thanksgiving because God had afforded the Founders "an opportunity peaceably to establish a constitution of government for their safety and happiness."

The phrase "safety and happiness" was employed repeatedly through the pre-revolutionary controversy, and its component terms were defined by John Adams in the 2nd Continental Congress's Resolution of May 10 and 15, 1776, establishing de facto independence. See "Safety and Happiness: The American Revolutionary Standard for Governmental Legitimacy" at https://www.academia.edu/1479704/Safety_and_Happiness_The_American_Revolutionary_Standard_for_Governmental_Legitimacy

Once again, all well-educated lawyers at the time learned something of the age-old natural law tradition at the foundation of English jurisprudence. For the Ciceronian ANTI-Lockean origin of natural law as understood by the Founders, see "Cicero, Natural Law and the Declaration of Independence" at https://www.academia.edu/6508461/Cicero_Natural_Law_and_the_Declaration_of_Independence

For a rebuttal of the mistaken scholarly association of "happiness" (as used in the Declaration of Independence) with John Locke, see "The Declaration of Independence without Locke: A Rebuttal of Michael Zuckert's 'Natural Rights Republic'" at https://www.academia.edu/29164747/The_Declaration_of_Independence_without_Locke_A_Rebuttal_of_Michael_Zuckerts_Natural_Rights_Republic_

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John Schmeeckle
on March 28, 2017 at 17:51:43 pm

Thanks for the links on the Declaration without Locke and Cicero.

Somewhat persuasive especially when one considers the high station afforded by the Founders to "virtue" - which is not present in Locke.

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gabe

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